Freedom of Speech is a well known, but often misunderstood concept. Protected by the First Amendment to the constitution, it is common for many Americans to assert our right to express opinion, but easy to forget that not all speech is legally protected.
While many of us can’t recall the details to our high school Social Studies unit on The Bill of Rights, here are some broad highlights on what the First Amendment does-and does not-protect when related to freedom of speech. (The First Amendment also protects freedom of press, assembly, and religion, which are not addressed below).
Is it speech? Freedom of speech does not only apply to the words that come out of your mouth, but also to a variety of forms of expression, including:
- Written works
- Movies and television
- Theatre and dance
- Online posts
- Art
- Computer coding
- Video games
- Yard signs
- Political messaging
- Handing out printed flyers
- Clothing
- Donations
- Symbolism, such as burning a flag or wearing an armband
- The right not to speak
Courts are continually analyzing specific cases to clarify freedom of speech rights as technology and communication platforms evolve.
Government censorship. First Amendment protection only secures your speech from government censorship at the federal, state and local government levels. While this is a broad category that often requires review, it extends to lawmakers, elected officials, public schools, and courts. It does not include private citizens, businesses and organizations.
But what is the difference, you may ask? Consider these few examples:
- A private school has the authority to suspend students for criticizing a school policy, while a public institution may not.
- A privately owned business may fire an employee for expressing political views on the job
- A private media company can refuse to publish opinions it disagrees with, often outlined in their terms of service
Unprotected areas of speech. Government holds the right to censor speech if it falls into the following categories:
- Threats
- Blackmail
- Defamation
- Obscenity
- Child Pornography
- Solicitations to commit crimes
- Incitement of lawless action
- Perjury
- Plagiarism
The government generally has the power to dictate speech policies when it acts in different capacities, such as an employer or educator.
*This is a very broad overview and readers should note, the bullets above should not be taken as legal advice, only highlights to analyze a difficult area of law.*
